XCHRX YU WING YAN AND OTHERS v. LEE YU MAN

HCMP4100/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.4100 OF 2000

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J U D G M E N T

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1. I shall tell you my conclusion of the matter before me today. This is the application of the plaintiffs against the defendant, duly appointed as the executor under the will of the deceased, for the appointment of an administrator under section 36 of the Probate Administrative Ordinance, Cap.10.

2. In respect of the jurisdiction point, I agree with Mr Earnest Cheung for the plaintiffs. I consider that those words in the said section 36 should mean (as submitted by him) "Grants for the administration of the estate" and not "grant of administration", for those reasons submitted by Mr Earnest Cheung, together with the decision of In re Clore [1982] 2 WLR 314 and the Lefkowitz decision in our Court of Appeal [1996] 3 HKC 591. Although this matter was never discussed in the case, the court has jurisdiction to substitute an administrator for a named executor and not limited to those three reasons mentioned in the section : and that is the unwillingness of an appointed executor, his competence, and the fact that he is beyond the jurisdiction.

3. The question is whether it is necessary and convenient in this case to exercise the court's discretion in favour of the plaintiffs : my conclusion here is it is not necessary and convenient. The plaintiffs have taken the position that those transfers from the deceased's account are not gifts. Those items included the bank accounts, the money transferred in the joint accounts before death, the money in the joint accounts which the defendant claimed to be gifts on survivorship, and the CLP shares. Although in the separate High Court action, the plaintiffs did not claim for the CLP shares, they have nonetheless mentioned it in the main body. They just do not make it part of their claim in the prayer. I would anticipate that they are going to amend their statement of claim. But then the plaintiffs stand or fall on those matters. They need not be the administrator in order to pursue the action.

4. There was an order, made ex parte by me, that the plaintiffs can represent the estate pursuant to Order 15, rule 6A. That was an ex parte order and if the defendant would like to discharge the ex parte order, she can apply. So whether the plaintiffs were properly constituted in that action is not a matter before me today.

5. The main thing is whether it is necessary and convenient for the plaintiffs, being the residuary legatee, the son and the grandson, to be the administrator. I do not consider that it is necessary for them to be the administrator just for the purpose of carrying on that action. Mr Earnest Cheung submitted that it will not be convenient for them if they are not the administrators. They cannot ask for the information, they cannot collect evidence. But they can collect evidence, ask for information by way of discovery, interrogatories, in the High Court action.

6. Section 36 is not a measure so as to enable the litigant to be in a better position as contended here. As the plaintiffs in the High Court actions, they can ask for discovery and make use of the procedural provisions. Obviously, I have decided that it is not a case where I should assess the strength of the plaintiffs' complaint and the strength of the defendant's defence in the High Court action. There were admittedly joint accounts, there were admittedly transfers before death, and there were admittedly transfer on survivorship. Whether they are gifts or not remains to be seen in the High Court action. They would be resolved in the High Court action. I cannot see anything special in the case which call for the intervention of the court to exercise its discretion under Section 36. Thus the application is dismissed.